Citation Nr: 1335817 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 13-04 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for cervical spine disability. 2. Entitlement to service connection for lumbar spine disability. ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from March 1990 to April 1993. This appeal to the Board of Veterans' Appeals (Board) arises from a January 2011 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans' Affairs (VA). The Board notes that the Veteran was initially represented by a private attorney. However, that attorney withdrew her representation in April 2013. The issue of entitlement to service connection for cervical spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's current lumbar spine disability is related low back pathology shown during service. CONCLUSION OF LAW The criteria for entitlement to service connection for lumbar spine disability are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) includes enhanced duties to notify and assist claimants for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the favorable disposition of the claim for service connection for lumbar spine disability, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. II. Analysis Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection nonetheless may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The evidence reasonably shows that the Veteran has a current low back disability, diagnosed as lumbar strain during a December 2010 VA examination. The evidence also shows that the Veteran experienced low back problems in service. He suffered an initial twisting injury in June 1991, and when was subsequently seen by medical personnel in July 1992 when he was diagnosed with mechanical low back pain related to carrying heavy equipment and climbing ladders. Additionally, both the Veteran and his sister have testified that he continued to experience back pain from separation until the present and the Board does not find a sufficient basis in the record for concluding that these assertions are not credible. Further, in an October 2010 opinion, a VA treating physician found that based upon the Veteran's activities in service, including carrying heavy equipment up stairs using ladders, the Veteran's current low back symptomatology more likely than not resulted from his military duties. Moreover, as the Veteran's sister is a nurse (R.N.), her testimony tending to indicate that his current back problems are related to service also weighs in favor of the presence of a medical nexus. Accordingly, the Board finds that a current low back disability, low back injury in service and nexus between the in-service injury and the current disability have all been established. Shedden, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The December 2010 VA examiner did find that the Veteran's occupation along with normal wear and tear more likely resulted in his current lumbar strain, reasoning that that there was no medical literature that she was aware of indicating the occurrence of a musculoskeletal strain resulted in herniated disc requiring fusion in a context where there was no injury or trauma. However, this examiner diagnosed the Veteran with a lumbar strain not with lumbar disc disease and the service treatment records show that the Veteran did experience some level of lumbar trauma in the form of a twisting injury. Accordingly, the Board does not attach significant evidentiary weight to the VA examiner's opinion concerning the low back and finds that the evidence is at least in equipoise as to whether a nexus is shown between low back injury in service and the current low back disability. See Gilbert, 1 Vet. App. 49 (1990). In sum, as all elements of the claim have been established, service connection for low back disability is warranted. 38 C.F.R. § 3.303, Shedden, 381 F.3d 1163, 1167 (Fed. Cir. 2004). ORDER Service connection for low back disability is granted. REMAND The evidence of record clearly shows that the Veteran has a current cervical spine disability, diagnosed as cervical neck strain status post cervical fusion. It also shows that he received some treatment for neck problems in service, including in March 1992 when he was diagnosed with mild torticollis. Additionally, he was also seen by medical personnel in April 1991 after being hit on both sides of the head with a beer bottle and fist punches. However, the medical evidence is conflicting as to whether the Veteran's current cervical spine disability is related to neck problems and/or trauma to the area around the neck during service. The December 2010 VA examiner found that the current disability more likely resulted from the Veteran's current occupation after service along with normal wear and tear while a VA treating physician found in December 2010 that the current disability more likely than not resulted from the duties he completed in the military. As neither opinion appears to be based on a detailed review of the Veteran's medical history, the Board finds that a remand is necessary for the Veteran to be afforded an additional VA medical examination with provision of an appropriately informed medical nexus opinion. Prior to affording the Veteran the VA examination, VA medical records pertaining to evaluation and treatment for cervical spine disability since January 2013 should be obtained. The Veteran should also be asked to identify any additional sources of recent treatment or evaluation he has received for cervical spine disability and copies of complete records of the treatment or evaluation should be obtained from all sources appropriately identified. Accordingly, the case is REMANDED for the following action: 1. VA medical records pertaining to evaluation and treatment for cervical spine disability since January 2013 should be obtained. The Veteran should also be asked to identify any additional sources of recent treatment or evaluation he has received for cervical spine disability and copies of complete records of the treatment or evaluation should be obtained from all sources appropriately identified. 2. Arrange for a VA examination by an appropriate medical professional other than the December 2010 VA examiner to determine the likely etiology of the Veteran's current cervical spine disability. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. The examiner should specifically review the service treatment records, including an April 1991 emergency room report and subsequent April 1991 progress note (pertaining to treatment the Veteran received after being struck in the head by a beer bottle and fist punches), a March 1992 progress note pertaining to neck pain and the March 1993 reports of separation examination and medical history; the post-service private medical records, including the Veteran's reports of his prior history of cervical spine problems contained therein; the post-service VA treatment records, including findings concerning the etiology of the Veteran's neck disability made by a VA primary care physician in May and October 2010; a September 2010 statement from the Veteran's sister pertaining to the Veteran's post-service medical history; the assertions of the Veteran and his representative, including the Veteran's September 2010 statement; and any other information in the claims file deemed pertinent. Any indicated tests should be performed. The examiner should then provide an opinion whether any current cervical spine disability is at least as likely as not (i.e. a 50% chance or greater) related to the Veteran's military service. The examiner should specifically explain the reasons for his or her conclusion, with any necessary reference to the evidence of record. 3. Readjudicate the claim. If it remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant until he is notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KELLI KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs